Section 2.21 Attorney-Client Privilege

• Library: Discovery 2015

Section 491.060(3), RSMo 2000, creates an attorney‑client privilege and protects communications between the attorney and client when the communication is made or advice is given in an attorney‑client relationship. There is a distinction between the attorney‑client privilege and the work product rule. Hickman v. Taylor, 329 U.S. 495 (1947). See also the discussion in §§2.29–2.31 below. See also:

· Halford v. Yandell, 558 S.W.2d 400 (Mo. App. S.D. 1977)

· State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978)

· Truck Ins. Exch. v. Hunt, 590 S.W.2d 425 (Mo. App. S.D. 1979)

· State ex rel. Mo. Highways & Transp. Comm’n v. Legere, 706 S.W.2d 560 (Mo. App. S.D. 1986)

· May Dep’t Stores Co. v. Ryan, 699 S.W.2d 134 (Mo. App. E.D. 1985)

The extent of the attorney‑client privilege is described in Smith, 574 S.W.2d 379, in which the Court holds that essentially all that is said between an attorney and the client falls within the privilege with the exception of certain factual matters. The privilege also applies to communications between a corporation’s general counsel and lower-level employees concerning an investigation being conducted by the government. Upjohn Co. v. United States, 449 U.S. 383 (1981). Even reports or statements taken from an employee for communication to counsel are privileged. State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 257 S.W.2d 69 (Mo. banc 1953); Legere, 706 S.W.2d 560.

As an extension of the attorney‑client privilege, it has been held that statements from an insured to a representative of the insured’s insurer are privileged and not subject to discovery regardless of any showing that might be made for the production of trial preparation materials. State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976). This is true even if the carrier denies coverage. State ex rel. L.Y. v. Davis, 723 S.W.2d 74 (Mo. App. E.D. 1986). The same privilege applies to incident reports prepared to be sent to a party’s liability insurer for possible use in defending a claim. May Dep’t Stores Co., 699 S.W.2d 134; Enke v. Anderson, 733 S.W.2d 462 (Mo. App. S.D. 1987). Such a privilege does not attach, however:

· in a declaratory judgment action when there is a dispute between the insurer and the insured concerning coverage, Truck Ins. Exch., 590 S.W.2d 425;

· when the insurance company insures property as opposed to being a liability insurer, State ex rel. J.E. Dunn Constr. Co. v. Sprinkle, 650 S.W.2d 707 (Mo. App. W.D. 1983);

· when the suit does not involve a claim against the insured, Am. Family Mut. Ins. Co. v. Brown, 631 S.W.2d 375 (Mo. App. W.D. 1982); or

· to an...